ORAL ARGUMENT NOT SCHEDULED No. 18-1129 ......ORAL ARGUMENT NOT SCHEDULED No. 18-1129 (consolidated...

ORAL ARGUMENT NOT SCHEDULED

No. 18-1129 (consolidated with Nos. 18-1135, 18-1148, 18-1159, 18-1184)

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

UNITED KEETOOWAH BAND OF CHEROKEE INDIANS IN OKLAHOMA, ET AL.,

Petitioners,

v.

FEDERAL COMMUNICATIONS COMMISSION, AND

UNITED STATES OF AMERICA,

Respondents.

On Petition for Review of an Order

of the Federal Communications Commission

BRIEF FOR INTERVENORS IN SUPPORT OF RESPONDENTS

Joshua S. Turner

Ari Meltzer

Meredith Singer

WILEY REIN LLP

1776 K Street NW

Washington, DC 20006

(202)719-7000

[email protected]

[email protected]

[email protected]

Christopher J. Wright

E. Austin Bonner

HARRIS, WILTSHIRE & GRANNIS

LLP

1919 M Street NW | Eighth Floor

Washington, DC 20036

(202)730-1300

[email protected]

[email protected]

Counsel for CTIA – The Wireless

Association®

Counsel for Sprint Corporation

USCA Case #18-1129 Document #1770273 Filed: 01/25/2019 Page 1 of 55

–i–

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to D.C. Cir. Rule 28(a)(1), Intervenors hereby certify as follows:

A. Parties and Intervenors:

These cases involve the following parties:

Petitioners: United Keetoowah Band of Cherokee Indians in Oklahoma;

Osage Nation; Shawnee Tribe of Oklahoma; Ponca Tribe of Indians of Oklahoma;

Delaware Nation; Otoe-Missouria Tribe; Sac and Fox Nation; Thlopthlocco Tribal

Town; Delaware Tribe of Indians; Pawnee Nation; Crow Creek Tribe of South

Dakota; Omaha Tribe of Nebraska; Seminole Tribe of Florida; Blackfeet Tribe;

Coushatta Tribe of Louisiana; Fort Belknap Indian Community; Rosebud Sioux

Tribe; Ute Mountain Ute Tribe; United South and Eastern Tribes, Inc.; and Natural

Resources Defense Council.

Respondents: Federal Communications Commission and the United States

of America.

Intervenors for Petitioners: National Association of Tribal Historic

Preservation Officers, National Trust for Historic Preservation, Cheyenne &

Arapaho Tribes, Apache Tribe of Oklahoma, Mescalero Apache Tribe, Alabama-

Quassarte Tribal Town, Tonkawa Tribe, Peoria Tribe of Indians of Oklahoma, and

Edward B. Myers.


–ii–

Intervenors for Respondents: CTIA-The Wireless Association and Sprint

Corporation.

B. Rulings Under Review: Second Report and Order, In re Accelerating

Wireless Broadband Deployment by Removing Barriers to Infrastructure

Investment, 33 FCC Rcd. ___, FCC 18-30 (Mar. 30, 2018), 83 Fed. Reg. 19440

(May 3, 2018) (“Order”).

C. Related Cases: Petitions for review are consolidated. Intervenors for the

Respondents are unaware of any other related cases.


–iii–

RULE 26.1 DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1 and D.C. Cir. Rule 26.1,

Intervenors submit the following statements:

CTIA – The Wireless Association (“CTIA”) is a Section 501(c)(6) not-for-

profit corporation organized under the laws of the District of Columbia that

represents the wireless communications industry. Members of CTIA include

wireless carriers, device manufacturers, and suppliers as well as apps and content

companies, and other industry participants. CTIA has not issued any shares or debt

securities to the public, and CTIA has no parent companies, subsidiaries, or affiliates

that have issued any shares or debt securities to the public. No parent or publicly

held company owns 10 percent or more of CTIA’s stock.

Sprint Corporation (“Sprint”) is a publicly traded Delaware corporation

that provides telecommunications services. Softbank Group Corp., a publicly traded

Japanese corporation, owns approximately 80 percent of Sprint Corporation’s

outstanding stock.


–iv–

TABLE OF CONTENTS

Page(s)

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ............. i

RULE 26.1 DISCLOSURE STATEMENT ............................................................. iii

TABLE OF AUTHORITIES ................................................................................... vi

GLOSSARY ............................................................................................................ xii

INTRODUCTION .................................................................................................... 1

ISSUES PRESENTED .............................................................................................. 2

STATUTES AND REGULATIONS ........................................................................ 3

STATEMENT OF THE CASE ................................................................................. 4

A. The National Historic Preservation Act and the National

Environmental Policy Act .................................................................... 4

B. FCC Implementation of NEPA and NHPA ......................................... 5

C. The Tribal Consultation Process .......................................................... 7

D. Small Cells and the Race to 5G ............................................................ 9

E. The FCC’s Order ................................................................................ 10

SUMMARY OF ARGUMENT .............................................................................. 11

STANDARD OF REVIEW .................................................................................... 14

ARGUMENT .......................................................................................................... 14

I. The Deployment of small wireless facilities is neither a “major federal

action” nor an “undertaking.” ....................................................................... 14

A. The FCC’s Determination That Section 1.1312 Does Not Apply

To The Deployment Of Small Wireless Facilities Was Both

Reasonable and Amply Supported by the Record. ............................ 17


–v–

1. The FCC Reasonably Determined That The Review

Process Triggered By Section 1.1312 Is Unnecessarily

Burdensome. ............................................................................. 18

2. The FCC Reasonably Determined That Small Wireless

Facilities Are Unobtrusive and Do Not Raise the Same

Concerns As Macro Cells. ....................................................... 20

B. The FCC Properly Determined That, Other Than Section 1.1312

Review, The FCC Has No Involvement In The Deployment Of

Small Wireless Facilities. ................................................................... 24

1. “Undertaking” And “Major Federal Action” Only Apply

When There Is Federal Control. .............................................. 25

2. Petitioners Cannot Recast Spectrum Licenses As

Infrastructure Permits. ............................................................. 28

II. THE FCC WAS NOT REQUIRED TO CONDUCT ANY NEPA

REVIEW BEFORE ISSUING THE ORDER. ............................................. 38

CONCLUSION ....................................................................................................... 40


–vi–

TABLE OF AUTHORITIES*

Page(s)

Cases

American Airlines, Inc. v. Department of Transportation,

202 F.3d 788 (5th Cir. 2000) .............................................................................. 30

Big Bend Conservation Alliance v. Federal Energy Regulatory

Commission,

896 F.3d 418 (D.C. Cir. 2018) .......................................................... 13, 16, 26, 38

Business & Residents Alliance of East Harlem v. Jackson,

430 F.3d 584 (2d Cir. 2005) ............................................................................... 30

Cellco Partnership v. Federal Communictaions Commission,

357 F.3d 88 (D.C. Cir. 2004) ........................................................................ 14, 17

Center for Auto Safety v. Peck,

751 F.2d 1336 (D.C. Cir. 1985) .......................................................................... 21

Chemical Manufacturers Association v. EPA,

919 F.2d 158 (D.C. Cir. 1990) ............................................................................ 23

Citizens Against Rails–to–Trails v. Surface Transportation Board,

267 F.3d 1144 (D.C. Cir. 2001) .......................................................................... 25

Community Nutrition Institute v. Young,

773 F.2d 1356 (D.C. Cir. 1985) .................................................................... 14, 40

Consumer Electronics Association v. Federal Communications

Commission,

347 F.3d 291 (D.C. Cir. 2003) ............................................................................ 21

CTIA-Wireless Association v. Federal Communications Commission,

466 F.3d 105 (D.C. Cir. 2006) ...................................................................... 12, 15

* Authorities upon which we chiefly rely are marked with asterisks.


–vii–

Defenders of Wildlife v. Andrus,

627 F.2d 1238 (D.C. Cir. 1980) .......................................................................... 26

EchoStar Communications Corp. v. Federal Communications

Commission,

292 F.3d 749 (D.C. Cir. 2002) ............................................................................ 18

Environmentel, LLC v. Federal Communications Commission,

661 F.3d 80 (D.C. Cir. 2011) .............................................................................. 38

Federal Communications Commission v. Fox Television Stations, Inc.,

556 U.S. 502 (2009) ............................................................................................ 18

FiberTower Spectrum Holdings, LLC v. Federal Communications

Commission,

782 F.3d 692 (D.C. Cir. 2015) ............................................................................ 38

Free Access & Broadcast Telemedia, LLC v. Federal

Communications Commission,

865 F.3d 615 (D.C. Cir. 2017) ............................................................................ 38

GTE Service Corporation v. Federal Communications Commission,

782 F.2d 263 (D.C. Cir. 1986) ............................................................................ 20

Heartwood v. United States Forest Service,

230 F.3d 947 (7th Cir. 2000) .............................................................................. 39

*Karst Environmental Education & Protection, Inc. v. Environmental

Protection Agency,

475 F.3d 1291 (D.C. Cir. 2007) ................................................................ 5, 12, 25

*Lee v. Thornburgh,

877 F.2d 1053 (D.C. Cir. 1989) .................................................... 4, 16, 25, 27, 30

New York v. Nuclear Regulation Commission,

681 F.3d 471 (D.C. Cir. 2012) ................................................................ 35, 36, 37

*Ringsred v. City of Duluth,

828 F.2d 1305 (8th Cir. 1987) .......................................................... 26, 27, 28, 30

Sac & Fox Nation of Missouri v. Norton,

240 F.3d 1250 (10th Cir. 2001) ................................................................ 5, 27, 30


–viii–

Save the Bay, Inc. v. United States Corps of Engineers,

610 F.2d 322 (5th Cir. 1980) .............................................................................. 28

Sheridan Kalorama Historical Association v. Christopher,

49 F.3d 750 (D.C. Cir. 1995) .............................................................................. 27

Sierra Club v. Bosworth,

510 F.3d 1016 (9th Cir. 2007) ............................................................................ 39

Sierra Club v. Federal Energy Regulatory Commission,

827 F.3d 36 (D.C. Cir. 2016) ........................................................................ 33, 36

Sierra Club v. Penfold,

857 F.2d 1307 (9th Cir. 1988) ............................................................................ 30

Sierra Club v. United States Army Corps of Engineers,

990 F.Supp.2d 9 (D.D.C. 2013) .......................................................................... 37

SNR Wireless LicenseCo, LLC v. Federal Communications

Commission,

868 F.3d 1021 (D.C. Cir. 2017), cert. denied sub nom. SNR

Wireless LicenseCo v. Federal Communications Commission, 138

S. Ct. 2674 (2018) ............................................................................................... 14

Sorenson Communications, LLC v. Federal Communications

Commission,

897 F.3d 214 (D.C. Cir. 2018) ...................................................................... 14, 17

Standing Rock Sioux Tribe v. United States Army Corps of Engineers,

301 F.Supp.3d 50 (D.D.C. 2018) ........................................................................ 37

State of New Jersey, Department of Environmental Protection &

Energy v. Long Island Power Authority,

30 F.3d 403 (3d Cir. 1994) ........................................................................... 32, 33

State of South Dakota v. Andrus,

614 F.2d 1190 (8th Cir. 1980) ............................................................................ 34

*Sugarloaf Citizens Association v. Federal Energy Regulatory

Commission,

959 F.2d 508 (4th Cir. 1992) ............................................... 12, 13, 26, 27, 30, 32


–ix–

Taxpayers Watchdog, Inc. v. Stanley,

819 F.2d 294 (D.C. Cir. 1987) ............................................................................ 37

Verizon Telephone Companies v. Federal Communications

Commission,

292 F.3d 903 (D.C. Cir. 2002) ............................................................................ 14

Administrative Decisions

In the Matter of Acceleration of Broadband Deployment by Improving

Wireless Siting Policies,

Report and Order, 29 FCC Rcd. 12865 (2014) ................................................... 23

In the Matter of Amendment of Environmental Rules,

First Report and Order, 5 FCC Rcd. 2942 (1990) ................................................ 7

In the Matter of Amendment of Environmental Rules in Response to

New Regulations Issued by the Council on Environmental Quality,

Report and Order, 60 Rad. Reg. 2d (P & F)(FCC Mar. 26, 1986) ............. 6, 7, 29

Amendment of Parts 1, 2, 22, 24, 27, 90 and 95 of the Commission’s

Rules to Improve Wireless Coverage Through the Use of Signal

Boosters,

Report and Order, 28 FCC Rcd. 1663 (2013) ..................................................... 31

In the Matter of Accelerating Wireless Broadband Deployment by

Removing Barriers to Infrastructure Inv., Notice of Proposed

Rulemaking, 32 FCC Rcd. 3330 (2017) ............................................................. 10

Reassessment of FCC Radiofrequency Exposure Limits & Policies,

First Report and Order, Further Notice of Proposed Rulemaking,

and Notice of Inquiry, 28 FCC Rcd. 3498 (2013) .............................................. 40

In the Matter of the National Environmental Protection Act of 1969,

Report and Order, 49 FCC.2d 1313 (1974) .......................................................... 5

Statutes

5 U.S.C. § 702(2)(A) ................................................................................................ 14

42 U.S.C. § 4332(C)............................................................................................. 4, 39

47 U.S.C. § 319(a) ................................................................................................. 5, 6


–x–

47 U.S.C. § 319(d) ......................................................................................... 6, 18, 29

47 U.S.C. § 332(c)(7)(A) ......................................................................................... 21

47 U.S.C. § 405(a) ............................................................................................. 13, 38

54 U.S.C. § 300320(3) ............................................................................................... 4

54 U.S.C. § 302702 .................................................................................................... 7

54 U.S.C. § 306108 .................................................................................................... 4

Act of Oct. 15, 1966, Pub. L. No. 89-665 (80 Stat.) ........................................ 4, 6, 26

Other Authorities

36 C.F.R. § 800.2(c)(2)(ii)(A), (a)(4) ................................................................ 7, 8, 9

36 C.F.R. § 800.16(y) .............................................................................................. 25

40 C.F.R. § 1508.18 ................................................................................................. 25

47 C.F.R. § 1.1307 ..................................................................................................... 6

47 C.F.R. § 1.1312(b) ........................................................................................ 12, 15

47 C.F.R. § 24.11 ............................................................................................... 29, 32

47 C.F.R. § 27.14(h) ................................................................................................ 35

47 CFR Part 1, Appx. B, §§ VI.A.5.a & b. .............................................................. 21

AccentureStrategy, Accelerating Future Economic Value From the

Wireless Industry (2018) ..................................................................................... 10

CTIA, The Global Race to 5G (April 2018) ............................................................ 10

Further Notice of Proposed Rulemaking, and Notice of Inquiry, 28

FCC Rcd. 3498 (2013) ........................................................................................ 40

*S. Rep. No. 91-296 (1969) ............................................................................. 4, 5, 26

Sprint, Sprint Reaches Nationwide LTE Advanced Milestone, (Oct. 31,

2018) ................................................................................................................... 34


–xi–

Verizon, What is Small Cell Technology, (Aug. 3, 2018) ....................................... 34


–xii–

GLOSSARY

CTIA CTIA – The Wireless Association

Sprint Sprint Corporation

FCC Federal Communications Commission

NRDC Natural Resources Defense Council

ACHP Advisory Council on Historic Preservation

CEQ Council on Environmental Quality

EA Environmental Assessment

EIS Environmental Impact Statement

NEPA National Environmental Policy Act

NHPA National Historic Preservation Act

Order In re Accelerating Wireless Broadband

Deployment by Removing Barriers to

Infrastructure Investment, Second Report and

Order, 33 FCC Rcd. ___, FCC 18-30 (Mar. 30,

2018), 83 Fed. Reg. 19440 (May 3, 2018)

TCNS Tower Construction Notification System

THPO Tribal Historic Preservation Officer

5G 5th Generation Wireless Services


–1–

INTRODUCTION

For more than 40 years, the FCC has required that certain applicants submit a

preliminary environmental report to the Commission before constructing

communications facilities. Although this obligation originally arose under NEPA,

as technology and the Commission’s licensing processes have changed, the original

concerns motivating this review have become less relevant. The deployment of

“small cells” and a switch to geographic licensing rather than site-based approvals

have eliminated the FCC’s role in deciding where most wireless communications

infrastructure will be placed. Nevertheless, the agency had continued to subject

small cells to residual environmental review requirements arising under the FCC’s

Communications Act public interest authority without ever revisiting the need for

these mandates or the costs they impose.

In the Order, the FCC took a fresh look at NEPA and NHPA requirements

along with any potential public interest benefits of continued environmental review

under the Communications Act. The Commission found that the costs of subjecting

small cells to the FCC’s environmental review regulations have become more

burdensome at a time when rapid and widespread deployment of wireless

infrastructure is critical to fulfilling consumer demand and winning the race to 5G.

The Commission also found that the benefits of such review are minimal because

they rarely identify any significant problem. The agency accordingly determined


2

that there no longer is any public interest justification for maintaining even residual

review of small wireless facilities. Having exempted small cells from its

environmental review regulations, the agency went on to find that there is no

remaining argument that the siting of these facilities involves the federal

government. Therefore, the Commission concluded, NEPA and NHPA are

inapplicable to small cell deployment because there is no federal undertaking or

action at issue when small cells are deployed.

The FCC’s actions in the Order serve as a long overdue recognition that its

prior environmental review regulations are out of step with the manner in which

modern wireless facilities are deployed. The agency’s decisions in the Order are

thus completely reasonable, if not required. The Commission’s recognition that the

public interest is not served by burdensome and unnecessary application of these

regulations is well within its broad statutory authority. Petitioners’ arguments are

meritless.

ISSUES PRESENTED

1. Whether the FCC reasonably determined that it contravenes the public

interest to apply environmental review regulations adopted pursuant to the FCC’s

Communications Act authority to the deployment of small wireless facilities.

2. Whether the FCC reasonably determined that its involvement in the

deployment of small wireless facilities is so minimal as to not constitute a “federal


3

or federally assisted undertaking” under NHPA or a “major federal action” under

NEPA.

3. Whether the FCC was required to conduct NEPA review before issuing

the Order.

STATUTES AND REGULATIONS

All relevant statutes and regulations are set forth in the addendum to the Brief

for Respondents.


4

STATEMENT OF THE CASE

A. The National Historic Preservation Act and the National Environmental Policy Act

NHPA requires federal agencies to “take into account” the effects of “[f]ederal

or federally assisted undertaking[s]” on historic properties. 54 U.S.C. § 306108.

Under NHPA, an undertaking is “a project, activity, or program funded in whole or

in part under the direct or indirect jurisdiction of a Federal agency, including . . .

those requiring a Federal permit, license, or approval.” 54 U.S.C. § 300320(3).

Congress intended these provisions to have “a limited reach.” Lee v.

Thornburgh, 877 F.2d 1053, 1056 (D.C. Cir. 1989). NHPA is aimed solely at

discouraging federal agencies “from ignoring preservation values in projects they

initiate.” Id. (emphasis added). It is a procedural statute that exists to ensure that

when federal agencies act, they consider the effect on historic properties and do not

run roughshod over local historical concerns. See Act of Oct. 15, 1966, Pub. L. No.

89-665, (80 Stat.), 915 (emphasizing that NHPA only reigns in actions of the

“Federal Government”).

Like NHPA, NEPA has a limited reach. NEPA commands Federal agencies

to identify and evaluate the environmental effects of proposed “major federal

actions.” 42 U.S.C. § 4332(C). The statute was intended to “clarif[y] the goals,

concepts, and procedures which determine and guide the programs and the activities

of Federal agencies.” S. Rep. No. 91-296, at 6 (1969) (emphasis added). As with


5

NHPA, NEPA is extends only to “the policies, regulations, and public laws of the

United States” and the “program activities” of Federal agencies; it is not a restriction

on private conduct. Id. at 6-7.

Courts have treated “undertakings” under NHPA and “major federal actions”

under NEPA as coextensive, recognizing that determining what constitutes an

“undertaking” or a “major federal action” is an objective inquiry that focuses on the

degree of federal control over a particular deployment. See, e.g., Karst Envtl. Educ.

& Prot., Inc. v. EPA, 475 F.3d 1291, 1295-96 (D.C. Cir. 2007); Sac & Fox Nation

of Mo. v. Norton, 240 F.3d 1250, 1263 (10th Cir. 2001).

B. FCC Implementation of NEPA and NHPA

The FCC’s implementation of NEPA and NHPA has evolved over time to

reflect changes in the FCC’s licensing procedures. In 1974, the FCC adopted its

initial order implementing NEPA. See In the Matter of the National Environmental

Protection Act of 1969, Report and Order, 49 FCC.2d 1313 (1974) (the “1974

Order”). At the time, Section 319 of the Communications Act of 1934 required all

FCC licensees, including carriers, to obtain a construction permit for a specific site

or physical location before they could obtain a license to operate. See 47 U.S.C.

§ 319(a). The FCC took 500,000 actions annually that authorized construction at

specified sites of this type. 1974 Order ¶13.


6

To focus its efforts only on actions likely to have a significant effect on the

environment, the Commission sought to distinguish between “major” actions and

“minor” ones. Id. The FCC recognized that “[t]he likelihood that [antenna] towers

will have a significant environmental effect depends on their height and location.”

Id. ¶31. Accordingly, the Commission decided to “draw a line based on the height

of the structure and to concentrate routine processing on larger structures, for which

the probability of significant effect is greater.” Id. ¶32.

In 1982, Congress amended Section 319 to eliminate the construction permit

requirement for certain wireless licensees unless the FCC determined that the public

interest, convenience, and necessity required a permit. See Act of Oct. 15, 1966,

Pub. L. No. 89-665, (80 Stat.), 915; 47 U.S.C. § 319(d). Shortly thereafter, the FCC

revised its rules to clarify that only facilities involving sensitive site areas, high

intensity lighting, or exceeding RF exposure limits would be subject to NEPA’s EA

requirement. See In the Matter of Amendment of Envtl. Rules in Response to New

Regulations Issued by the Council on Envtl. Quality, Report and Order, 60 Rad. Reg.

2d (P & F) ¶11 (FCC Mar. 26, 1986) (“1986 Order”); 47 C.F.R. § 1.1307. The 1986

Order added a separate section to the FCC’s rules, Section 1.1312, to address

facilities for which no construction permit was required. Although construction of

these facilities did not qualify as “actions which may have a significant

environmental effect,” and thus did not trigger NEPA, the FCC nevertheless required


7

the licensee or applicant to submit information similar to that required for an EA

before it would issue a license. Id. ¶18.

Then, in 1990, the FCC amended Section 1.1312 to require pre-construction

approval in limited circumstances where (i) the facilities were otherwise exempt

from obtaining construction permits but (ii) the licensee or applicant determined that

the proposed facility “may have a significant effect on the environment.” See In the

Matter of Amendment of Envtl. Rules, First Report and Order, 5 FCC Rcd. 2942

(1990). Id. ¶1.

C. The Tribal Consultation Process

NHPA and its implementing regulations distinguish between projects on tribal

lands and those on non-tribal lands. For projects on tribal lands, tribes must concur

that the project will have “no adverse effect” on “historical properties” before the

project may proceed. See 54 U.S.C. § 302702. For projects on non-tribal lands,

however, tribes serve as “consulting parties,” and may identify concerns, advise on

identification and evaluation issues, comment on potential effects, and participate in

the resolution of adverse effects. See 36 C.F.R. § 800.2(c)(2)(ii)(A), (a)(4); id.

§ 800.16(f). Consulting parties are entitled to have their views considered, but their

concurrence in the outcome is not required. See id. § 800.6(c).

For projects on non-tribal lands, the tribal consultation process was designed

to work as follows: (1) tribes indicate the areas where they would like notification


8

of wireless infrastructure projects, in the Tower Construction Notification System

(“TCNS”); (2) applicants enter proposed projects into the TCNS, which then notifies

interested tribes; (3) tribes notify the applicant if they would like to consult on the

project; (4) applicants provide consulting tribes with a Preliminary Submission

Packet containing substantial information about the project; (5) tribes have an

opportunity to comment; and (6) the tribes’ comments are included in the final

Submission Packet, and, where the record so warrants, a finding of concurrence with

a proposed “no properties” or “no effect” finding. See CTIA/WIA Comments at 9-

10 (6/15/17) [JA-306-07].

Before the Order, the tribal consultation process was plagued by delays,

ambiguous procedures, and insufficient guidance regarding tribes’ role in the

process. CTIA/WIA Comments at 10 [JA-307]. Many tribes consulted on an overly

broad number of facilities, designating interest in geographic areas hundreds or even

thousands of miles away from their ancestral homelands, id., and some tribes

charged carriers exorbitant upfront fees for what they deemed “specialized

evaluation” of a project. Id. The record includes the example of an application for

collocation in a high school parking lot that drew an expression of interest from 24

tribes, resulting in extensive costs and delays, with no countervailing benefit. See

Crown Castle Comments at 39-40 (6/15/17) [JA-283-84].


9

Problems with the consultation process have seriously hindered the

deployment of wireless facilities. Prior to the Order, the average time for tribes to

complete a request for consultation was 110 days, with more than 30 percent of

requests taking more than 120 days to complete. CTIA/WIA Comments at 6 [JA-

303]. Meanwhile, only 0.33 percent of tribal reviews (without regard for the type of

project or the size of the facility involved) resulted in a finding of adverse effect. Id.

D. Small Cells and the Race to 5G

Wireless providers are racing to expand their networks to keep up with

exponential growth in demand for wireless service. As smart devices have become

ubiquitous, wireless data consumption grew 25-fold from 2010 to 2015, including a

100 percent increase in 2015 alone. CTIA Comments at 8-9 (3/8/17) [JA-289-90].

This increase in demand is illustrated by data usage on the Sprint network in and

around the stadiums during the last few Super Bowls: the total data usage in 2017

was more than three times greater than 2016, which in turn was eight times greater

than in 2015. Sprint Comments at 9-10 6/15/17 [JA-382-83].

To address the growing demand for speed and capacity and to enable a wide-

range of additional technical enhancements, wireless providers are turning to next-

generation 5G networks, which offer superior speed and latency performance. 5G

networks utilize network densification, which employs small cells to reuse the same

frequency bands more often and in smaller areas than traditional macro cells. See


10

Sprint Comments at 10 [JA-383]. To meet growing demand, wireless carriers will

need to deploy approximately 300,000 small cells in the next few years.

AccentureStrategy, Accelerating Future Economic Value From the Wireless

Industry at 6 (2018). While there will be far more small cells, their individual impact

will pale next to that of traditional wireless facilities: A typical small cell is the size

of a shoe box, a pizza box, or a fire extinguisher, and can be mounted on a utility

pole, streetlight, traffic signal, or building with limited additional equipment on the

ground. See Sprint Comments at 12 [JA-385]; CTIA, The Global Race to 5G at 13

(April 2018). By contrast, traditional macro sites require a tall support tower with

numerous antennas mounted on top, and they frequently require a fenced off ground

area and one or more equipment cabinets. Sprint Comments at 11-12 [JA-384-85].

E. The FCC’s Order

In April 2017, the FCC issued a notice of proposed rulemaking seeking

comment on ways to remove or reduce impediments to wireless network

infrastructure investment and deployment. In the Matter of Accelerating Wireless

Broadband Deployment by Removing Barriers to Infrastructure Inv., Notice of

Proposed Rulemaking, 32 FCC Rcd. 3330 (2017) (the “NPRM”). The Commission

committed to take “a comprehensive fresh look at our rules and procedures

implementing” NEPA and NHPA. Id. ¶23. The NPRM noted that the FCC’s

complicated environmental and historic review processes “increase the costs of


11

deployment and pose lengthy and often unnecessary delays, particularly for small

facility deployments.” Id. ¶33.

On March 30, 2018, the FCC released the Order, which found that there is no

longer any public interest justification for subjecting deployments of small wireless

facilities to the Commission’s discretionary environmental review procedures under

Section 1.1312 and, therefore, that there is no longer even an arguable basis for

concluding that they are undertakings under NHPA or major federal actions under

NEPA. The Order also modified certain procedures for NHPA and NEPA review

of facilities that remain subject to Section 1.1312.1

After filing petitions for review of the Order, Petitioners filed two emergency

motions for stay pending judicial review, which the Court denied on August 15,

2018.

SUMMARY OF ARGUMENT

1. The FCC properly determined that the deployment of small wireless

facilities is neither an “undertaking” under NHPA nor a “major federal action” under

NEPA. These statutes do not apply every time a federal “license,” “permit,” or

“approval” is issued. Rather, an agency must exert control or exercise substantial

discretion over a given project for the activity to qualify as an “undertaking” or a

1 While Respondent-Intervenors support the entirety of the FCC’s actions in the

Order, this brief only addresses those actions pertaining to small cells.


12

“major federal action.” See Sugarloaf Citizens Ass’n v. FERC, 959 F.2d 508, 513

(4th Cir. 1992); Karst, 475 F.3d at 1295.

The FCC has never concluded that the mere issuance of a license to transmit

radiofrequencies in a given geographic area is enough to trigger review under NEPA

and NHPA. The agency has instead long held that its involvement only rises to the

requisite level of control if a given facility either (i) is subject to the FCC’s tower

registration and approval process or (ii) may have a significant environmental impact

and is thus required to undergo an EA under Section 1.1312(b) of the FCC’s rules.

See CTIA-Wireless Ass’n v. FCC, 466 F.3d 105, 112-18 (D.C. Cir. 2006). Assessing

the public interest under the Communications Act, the FCC has made a reasoned

determination that the burdens of subjecting small wireless facilities to the agency’s

discretionary, residual environmental review outweigh the limited benefits of that

review. Order ¶¶63-71 [JA-827-31]. For small wireless facilities that are not subject

to the tower registration and approval process, the effect of excluding them from

environmental review under Section 1.1312(b) is to remove the federal control or

discretion over those facilities that arguably triggers NEPA and NHPA.

Petitioners’ argument that the FCC’s issuance of geographic spectrum

licenses, standing alone, constitutes federal control or involvement over small

wireless facilities would constitute a radical expansion of NEPA and NHPA. For an

“undertaking” or “major federal action” to occur, the FCC must possess “actual


13

power” to control the project. See Sugarloaf, 959 F.2d at 513; Big Bend

Conservation All. v. FERC, 896 F.3d 418, 423-25 (D.C. Cir. 2018). While the

Commission has, in the past, found that site-based licensing and discretionary,

residual environmental review constitute such “actual power,” it has never held that

the issuance of a geographic spectrum license, standing alone, meets that threshold.

In fact, a geographic license falls far short; it does not determine what facilities a

licensee will use to provide service using the licensed spectrum or where those

facilities will be located. Indeed, parties can and do construct small wireless

facilities, such as unlicensed Wi-Fi hotspots, without a spectrum license at all. The

issuance of geographic licenses, therefore, is so attenuated from the actual

deployment of small wireless facilities that it cannot constitute an “undertaking” or

a “major federal action.”

2. There is no merit to NRDC’s argument that the FCC was required to

conduct a NEPA review before issuing the Order. Procedurally, NRDC’s argument

is barred because it was not raised below. 47 U.S.C. § 405(a). Even if it was, under

established precedent, the Order itself was not a major federal action, and the

Commission was not required to reconsider the environmental effects of wireless


14

facilities. See Cmty. Nutrition Inst. v. Young, 773 F.2d 1356, 1362–63 (D.C. Cir.

1985).

STANDARD OF REVIEW

This Court defers to agency decisions under the Administrative Procedure

Act, 5 U.S.C. § 702(2)(A), unless they are “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” SNR Wireless LicenseCo, LLC

v. FCC, 868 F.3d 1021, 1029 (D.C. Cir. 2017), cert. denied sub nom. SNR Wireless

LicenseCo v. FCC, 138 S. Ct. 2674 (2018) (quoting 5 U.S.C. § 706(2)(A)). This

review is “deferential,” Sorenson Commc’ns, LLC v. FCC, 897 F.3d 214, 230 (D.C.

Cir. 2018) (quotations omitted), and a court cannot “substitute [its] judgment for that

of the agency,” SNR Wireless, 868 F.3d at 1029; see also Verizon Tel. Companies v.

FCC, 292 F.3d 903, 909 (D.C. Cir. 2002) (applying “highly deferential standard” to

FCC decisions “in an area of rapidly changing technological and competitive

circumstances’”) (quoting Sprint Commc’ns Co. L.P. v. FCC, 274 F.3d 549, 556

(D.C. Cir. 2001)); Cellco P’ship v. FCC, 357 F.3d 88, 93 (D.C. Cir. 2004).

ARGUMENT

I. THE DEPLOYMENT OF SMALL WIRELESS FACILITIES IS NEITHER A “MAJOR FEDERAL ACTION” NOR AN

“UNDERTAKING.”

The FCC properly concluded in the Order that the deployment of small

wireless facilities is neither a “major federal action” under NEPA nor an


15

“undertaking” under NHPA. The FCC previously determined—and this Court

affirmed—that wireless facility deployments pursuant to geographic area licenses

may nevertheless constitute “undertakings” in two sharply limited contexts: (1)

where facilities are over 200 feet or near airports and are thus subject to the FCC’s

tower registration and approval process; and (2) where facilities not subject to pre-

construction FCC authorization (like small wireless facilities) are nevertheless

required, under Section 1.1312(b), to obtain an environmental assessment prior to

deployment. See CTIA, 466 F.3d at 112-18; 47 C.F.R. § 1.1312(b). For small

wireless facilities that are not subject to the FCC’s tower registration and approval

process, the only possible basis for concluding that they are “undertakings” is if they

are subject to environmental review under the FCC’s “limited approval authority”

set forth in Section 1.1312(b). See CTIA, 466 F.3d at 112-18; Order ¶¶36-38 [JA-

817-19]. Where the FCC chooses to exercise its Section 1.1312 public interest

authority to require NEPA-like environmental review, the agency arguably becomes

sufficiently intertwined in wireless facility deployments so as to trigger NEPA and

NHPA. See id. ¶51 [JA-823-24]. But when it decides that environmental review is

contrary to the public interest, as it has with small cells, their deployment is a private

rather than federal undertaking.

The FCC revisited its “limited approval authority” in the Order, reasonably

concluding under its Communications Act public interest mandate that there is no


16

justification for subjecting small wireless facilities to discretionary, residual

environmental review under Section 1.1312. Order ¶59 [JA-826]. The agency

relied on a robust record detailing the harms associated with subjecting such

deployments to Section 1.1312’s onerous requirements. See id. ¶¶60-81[JA-826-

38].

By amending Section 1.1312 to exclude small wireless facilities from

environmental review, the FCC eliminated the sole predicate federal involvement

that could arguably have met the standard for “undertakings” and “major federal

actions” and, thus, there is no basis to subject such deployments to NEPA or NHPA

review. See id. ¶¶58-59 [JA-826]. For personal wireless services, the Commission

issues licenses for the use of certain bands of spectrum in defined geographic areas

(sometimes spanning several states), but it does not approve specific sites or

facilities. Longstanding precedent confirms that the Commission’s limited role in

these services (if any) fails to rise to the level of federal entanglement required to

find that small cell deployments are “undertakings” or “major federal actions.” See

Lee, 877 F.2d at 1058; Big Bend, 896 F.3d at 423-25. Indeed, this Court has

repeatedly confirmed that NEPA and NHPA must be read narrowly to avoid

federalizing a broad swath of projects and saddling federal agencies with limitless

review obligations. See Lee, 877 F.2d at 1058.


17

A. The FCC’s Determination That Section 1.1312 Does Not Apply To The Deployment Of Small Wireless Facilities Was Both

Reasonable and Amply Supported by the Record.

In the Order, the FCC, acting pursuant to its statutory mandate, concluded that

(1) encouraging the deployment of small wireless facilities will effectuate the

purposes of the Communications Act by promoting rapid deployment of 5G

networks to meet the explosive demand for wireless services; and (2) the public

interest does not support applying Section 1.1312 to small wireless facilities. The

FCC relied on a robust record demonstrating that small wireless facilities do not

cause adverse effects to tribal sites or historic properties. Myriad stakeholders

submitted comments supporting the Order’s conclusions, confirming that the FCC

had ample bases on which to determine that the public interest would not be served

by subjecting small wireless facilities to Section 1.1312 review.

Petitioners do not dispute that the FCC has authority to adopt, repeal, or

modify rules under its public interest authority. Instead, Petitioners contest the

FCC’s reasons for exercising that authority, asserting that the Order’s exclusion of

small wireless facilities from the scope of Section 1.1312 is arbitrary. See

Keetoowah Br. at 35-36. These claims are subject to a “highly deferential” standard

of review that Petitioners cannot overcome. Sorenson, 897 F.3d at 230; Cellco

P’ship, 357 F.3d at 93. Petitioners attempt to shift their heavy burden to the FCC by


18

arguing that the Order amounts to a policy reversal lacking justification. See

Keetoowah Br. at 34-35. But the Commission had never squarely addressed whether

the public interest is served by applying Section 1.1312 to small wireless facilities,

a fact that Petitioners do not dispute. Order ¶61 [JA-826]. Moreover, to the extent

the Order constitutes a change in position, the FCC has properly acknowledged and

explained its change, and such determination is entitled to highly deferential review.

See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 514-15 (2009).

1. The FCC Reasonably Determined That The Review Process

Triggered By Section 1.1312 Is Unnecessarily Burdensome.

In analyzing for the first time whether applying Section 1.1312 to small

wireless facilities is in the public interest, the FCC reasonably concluded, based on

a robust factual record, that Section 1.1312 imposes unnecessary burdens in the

context of small wireless facilities. This Court must uphold the Order so long as the

Commission made factual findings supported by substantial evidence, considered

the relevant factors, and “articulate[d] a rational connection between the facts found

and the choice made.” EchoStar Commc’ns Corp. v. FCC, 292 F.3d 749, 752 (D.C.

Cir. 2002) (quotations omitted). There is no question that the Order meets this

standard.

The Order is consistent with Congress’ directive that the Commission should

not impose unnecessary regulatory burdens on wireless facilities deployment. When

Congress adopted Section 319(d) of the Communications Act, eliminating


19

Commission approval requirements for wireless communications facilities and

precluding construction permit requirements, it intended to facilitate wireless

infrastructure deployment by reducing the agency’s involvement in the buildout of

individual facilities. Order ¶63 [JA-827]. It was thus eminently reasonable for the

FCC to conclude that, as to small wireless facilities, replacing the construction

permit approval process with review under Section 1.1312 “risks replicating the

harmful effects that Congress expressly sought to eliminate.” Id.

Petitioners do not challenge the FCC’s finding that small wireless facilities

will be necessary to support 5G services. Order ¶64 [JA-827-28]. Rather,

Petitioners contend that the costs of tribal consultation do not impede the deployment

of small cells. See Keetoowah Br. at 16-17. But Petitioners offer no support for

their contention aside from the mere assertions that “carriers are multi-billion dollar

companies with significant revenue streams” and abusive fees are not widespread.

Id. at 17-18.

By contrast, the FCC considered the extensive evidence in the record of the

“substantial, rising, and unnecessary costs for deployment” that stem directly from

subjecting small wireless facilities to Section 1.1312 review and the substantial delay

that review imposes on deployment. Order ¶¶11-15; 68-71 [JA-809-11; 828-31].

The Order cites specific data in the record regarding the costs to Sprint of completing

environmental assessments, id. ¶68 [JA-828-29], the substantial cost to Verizon as a


20

percentage of total project costs, id. ¶69 [JA-829-30], and expected increases in these

costs corresponding to accelerated deployments, id. The Order also cites

uncontroverted data from AT&T that the cost of complying with review

requirements would fund over 1,000 additional small cell sites, and that eliminating

these requirements would reduce deployment timelines by 60-90 days. Id.

Similarly, the FCC considered evidence from Sprint that the $23 million it had

already spent on historic reviews could have funded an additional 657 new sites and

that, with reforms to tribal review fees, Sprint could construct 13,408 new sites for

what 10,000 sites previously cost. Id. ¶14 [JA-811]. With such overwhelming

evidence, the Commission’s conclusion that the review process is unnecessarily

burdensome hardly can be considered arbitrary. See GTE Serv. Corp. v. FCC, 782

F.2d 263, 273 (D.C. Cir. 1986) (affirming FCC conclusion supported by ample

evidence in the record).

2. The FCC Reasonably Determined That Small Wireless

Facilities Are Unobtrusive and Do Not Raise the Same

Concerns As Macro Cells.

The FCC also properly assessed the differences between small cells and macro

cells, concluding that regardless of whether the public may benefit from Section

1.1312 review of larger facilities, there are no appreciable benefits from requiring

such review of small wireless facilities. Order ¶72 [JA-831-32]. The Order’s

approach to small wireless facilities is in lockstep with the FCC’s approach to other


21

small facilities whose impact is inconsequential, such as consumer signal boosters,

Wi-Fi routers, and unlicensed equipment, all of which operate pursuant to FCC

authorizations and are excluded from Section 1.1312. See id. ¶43 [JA-43]. The

FCC’s assessment of the costs and benefits of its own regulation is entitled to highly

deferential review. See Consumer Elecs. Ass’n v. FCC, 347 F.3d 291, 304 (D.C.

Cir. 2003); Ctr. for Auto Safety v. Peck, 751 F.2d 1336, 1342 (D.C. Cir. 1985)

(recognizing narrow scope of review applicable to agency consideration of “costs

and benefits of alternative policies”).

The scope of the Order is limited in five ways, reflecting the reasonableness

of the FCC’s approach. First, the Order only applies to small wireless facilities,

which can be no more than three cubic feet in volume and carry associated wireless

equipment no larger than 28 cubic feet. Order ¶¶75-76 [JA-833-35]. These facilities

are analogous to those that the Commission has previously excluded from review.

See Nationwide Programmatic Agreement for the Collocation of Wireless Antennas,

47 CFR Part 1, Appx. B, §§ VI.A.5.a & b. Second, the Order only applies to

facilities deployed on structures below a certain height threshold (50 feet or no more

than 10 percent taller than other structures in the area). Order ¶74 [JA-832-33].

Third, the Order does not apply at all to facilities deployed on tribal lands. Id. ¶17

[JA-812]. Fourth, the Order does not alter any reviews conducted by states or

localities. Id. ¶77 [JA-835-36]; 47 U.S.C. § 332(c)(7)(A). Fifth, the Order does not


22

apply to small wireless facilities subject to the FCC’s antenna structure registration

process. Id. ¶45 [JA-821].

The record provides ample support for the FCC’s conclusion that the cost of

environmental review for the narrow class of facilities covered by the Order far

outweighs its benefits. Id. ¶81 [JA-838]. Numerous commenters explained that

reviews of proposed deployments rarely result in a finding of significant

environmental impact or adverse impact on historic properties. See Crown Castle

Comments at 34 [JA-278] (noting that Crown Castle has never received a negative

report or response from a Tribal Nation for a small cell deployment); Sprint

Comments at 6 [JA-379] (describing no possible adverse effects); Verizon

Comments at 44 (6/15/17) [JA-413] (only 0.3% of requests for tribal review resulted

in findings of adverse effect); Texas Historical Commission 6/2/17 ex parte letter at

1 [JA-128] (stating that 0.25 percent of projects “were found to have an adverse

effect on historic properties” since 2014, including at least some projects involving

small wireless facility deployments); Texas Historical Commission 3/15/18 ex parte

letter at 1 [JA-793] (citing one lone instance of concern associated with a small

wireless facility deployment). By contrast, the FCC recognized that continuing to

subject small wireless facilities to Section 1.1312 would have “detrimental effects

on the roll-out of advanced wireless service.” Order ¶79 [JA-837].


23

Finally, the Petitioners’ characterization of the Order as a policy reversal is

simply wrong. The Order merely clarifies the application of an existing rule to new

technologies. The 2014 order cited by Petitioners did not purport to consider

whether it was in the public interest to subject small wireless facilities to Section

1.1312. See In the Matter of Acceleration of Broadband Deployment by Improving

Wireless Siting Policies, Report and Order, 29 FCC Rcd. 12865 ¶84 (2014). Rather,

the 2014 order took for granted that, because small wireless facilities were subject

to Section 1.1312 review at the time, their deployment constituted a federal

undertaking. Id. Accordingly, the question before the Commission in 2014 was not

whether applying Section 1.1312 to small wireless facilities was in the public

interest, but, instead whether it was proper to categorically exclude small wireless

facilities from environmental review. Id. ¶77. While the FCC concluded that the

record before it—at a time when small cells were much less prevalent—was

insufficient to justify a categorical exclusion, id. ¶86, it did not conclude that small

wireless facilities must affirmatively be subject to environmental review, and thus

did not adopt a policy that, Petitioners erroneously claim, the Order now reverses.

Cf. Chem. Mfrs. Ass’n v. EPA, 919 F.2d 158, 170 (D.C. Cir. 1990) (finding no

reversal where agency had not adopted a “settled course of behavior”).

By contrast, here the FCC made a threshold determination under its organic

statute that it should not extend Section 1.1312 to small wireless facilities. The effect


24

of that decision was to remove any credible argument that deployment of small

wireless facilities is an “undertaking” or “major federal action,” rendering moot the

question whether a categorical exclusion for small wireless facilities is appropriate.

B. The FCC Properly Determined That, Other Than Section 1.1312 Review, The FCC Has No Involvement In The Deployment Of

Small Wireless Facilities.

Carriers have long been free to choose when and where to deploy small

wireless facilities, subject to lawful state and local regulations, with only the residual

possibility of limited FCC oversight. By removing small wireless facilities from the

scope of Section 1.1312, the FCC has reduced its already negligible involvement in

the deployment of these facilities to zero. Order ¶59 [JA-826]; CTIA, 446 F.3d at

112-18. Petitioners’ effort to shoehorn aspects of FCC licensing that are only

tangentially related to the construction of small cells, such as geographic licensing,

into the requisite federal action are unavailing: The FCC does not finance small

wireless facility deployments, does not require preconstruction authorization, does

not license or approve individual facilities, and now plays no role whatsoever in

siting decisions. Courts have never recognized such a de minimis level of federal

“involvement” in a project as an “undertaking” or a “major federal action,” and this

case should be no different.

Agencies must analyze two issues when deciding whether an activity

constitutes an “undertaking” or a “major federal action”: (1) does the agency exert


25

control or exercise substantial discretion over the project so as to be under the

purview of NHPA or NEPA (“federal involvement inquiry”); and (2) if the agency

is so involved, does the action result in effects on the environment or historic

properties (“effects inquiry”). See 36 C.F.R. § 800.16(y); 40 C.F.R. § 1508.18;

Karst, 475 F.3d at 1295. Unless an action qualifies under both the federal

involvement inquiry and the effects inquiry, it is not subject to NEPA or NHPA.

Petitioners cannot satisfy either standard. The FCC has no involvement in the

deployment of small wireless facilities, and even assuming, arguendo, that it was

involved, small wireless facilities by definition “pose little or no risk” of

environmental or historic preservation effects. See Order ¶42 [JA-820]; supra,

Section I.A.2.

1. “Undertaking” And “Major Federal Action” Only Apply

When There Is Federal Control.

Long-standing precedent and common sense dictate that a federal agency

must exercise control or otherwise show substantial involvement in all aspects of a

project for the activity to qualify as an “undertaking” or a “major federal action.”

See Citizens Against Rails–to–Trails v. Surface Transp. Bd., 267 F.3d 1144, 1151

(D.C. Cir. 2001); Karst, 475 F.3d at 1295. Congress enacted NEPA and NHPA to

ensure that, when the federal government acts, it remains mindful of historic and

environmental concerns. See Lee, 877 F.2d at 1058 (“It is their own nest Congress


26

has asked the agencies not to foul.”); Act of Oct. 15, 1966, Pub. L. No. 89-665, (80

Stat.); S. Rep. No. 91-296, at 6 (1969).

Because NEPA and NHPA are “look before you leap” directions aimed

exclusively at the federal government, neither extends to private action. Federal

control is the hallmark of an “undertaking,” with courts evaluating the agency’s

degree of discretion, whether federal aid has been given, and whether the overall

level of federal involvement is sufficient to convert private action into federal

activity. Ringsred v. City of Duluth, 828 F.2d 1305, 1308 (8th Cir. 1987). At a

minimum, a federal agency must possess “actual power” to control the project for

an “undertaking” or “major federal action” to occur. See Sugarloaf, 959 F.2d at 513;

see also Big Bend, 896 F.3d at 423-25 (declining to require NEPA review where

“the bulk of” a pipeline project was “not subject to federal jurisdiction”); Defs. of

Wildlife v. Andrus, 627 F.2d 1238, 1244 (D.C. Cir. 1980) (mere federal “approval”

of a private act does not create a “major federal action” unless “the federal

government undertakes some ‘overt act’ in furtherance of” the project).

Petitioners fail to grapple with this well-established precedent. Instead, they

assert, without authority, that “undertaking” and “major federal action” should be

read broadly, to encompass private, small wireless facility deployments over which

the FCC exercises no control. See Blackfeet Br. at 19-20. This Court has never

taken such an expansive view.


27

Instead, this Court has long confirmed that “undertaking” and “major federal

action” must be read narrowly, to encapsulate “only . . . projects or programs [federal

agencies] initiate or control through funding or approvals.” Lee, 877 F.2d at 1058

(emphasis added). In Lee, for example, this Court clarified that NHPA’s reach is

narrow, holding the statute did not apply to a proposed D.C. correctional facility

“because the planning and construction of the facility was neither funded nor

dependent on approval by a federal agency.” Id. at 1058. Likewise, in Sheridan

Kalorama Historical Association v. Christopher, this Court cautioned against

adopting overly capacious interpretations of NHPA’s terms that would “read all

limitations out of the Act.” 49 F.3d 750, 756 (D.C. Cir. 1995) (concluding that the

failure to disapprove a building proposal “did not render the project” an

“undertaking”).2

Other Circuit Courts agree with this approach. See, e.g., Ringsred, 828 F.2d

at 1308 (8th Cir.); Sugarloaf, 959 F.2d at 515 (4th Cir.); Norton, 240 F.3d at 1262-

63 (10th Cir.). In Ringsred, for example, the Eighth Circuit held that the Secretary

of Interior’s approval of contracts related to a private parking ramp “were so

incidental” to the project that neither NHPA nor NEPA applied. Ringsred, 828 F.2d

2 Petitioners wrongly claim that Sheridan interprets “undertaking” “broadly,”

Keetoowah Br. at 25, but Sheridan explicitly rejects a broad theory of “undertaking,”

cautioning against “extending the reach of § 106 beyond the grasps of its terms.” 49

F.3d at 756.


28

at 1308. Although the Secretary’s approval of the contracts “did give him ‘a factual

veto power’” over the project, the court concluded that the Secretary’s control over

the ramp was “not significant enough to establish a major federal action.” Id.; see

also Save the Bay, Inc. v. U.S. Corps of Eng’rs, 610 F.2d 322, 327 (5th Cir. 1980)

(“a private project does not become a ‘major Federal action’ merely because of some

incidental federal involvement”).

The FCC has no involvement in small wireless facility deployment, let alone

“control” of these private actions. As in Ringsred, “[n]o federal action is a legal

condition precedent” to the deployment of small wireless facilities. Id. at 1308.

Where Section 1.1312 review is not required, carriers may deploy small wireless

facilities without any FCC approval at all. The deployment of such facilities cannot

be considered an “undertaking” or a “major federal action” under any reading.

2. Petitioners Cannot Recast Spectrum Licenses As

Infrastructure Permits.

Without Section 1.1312, Petitioners are left to spin an alternate narrative of

FCC involvement: That the FCC’s issuance of broad geographic area spectrum

licenses is enough to federalize the deployment of small wireless facilities. See

Keetoowah Br. at 24; NRDC Br. at 12-13. But this radical reimagining of NEPA

and NHPA’s scope relies on a misapprehension of the authority conveyed by

geographic area spectrum licenses. It also ignores long-standing precedent


29

confirming that government involvement of the type involved in spectrum licensing

is of no moment.

Spectrum licenses grant the right to use spectrum, not the right to deploy or

build infrastructure. See Order ¶85 [JA-839-40]. A geographic area spectrum

license does no more than authorize wireless operations on specific frequencies in a

given geographic area,3 and gives the FCC no role in individual deployment

decisions. See id. Instead, the choice of where and when to deploy any particular

wireless facility, including a small wireless facility, lies with the licensee and does

not require an FCC license, permit, or any other form of FCC approval any more

than a person’s decision of where to place a WiFi router in her home. See id.; see

also 47 U.S.C. § 319(d) (precluding construction permits for wireless

communications facilities); 47 C.F.R. § 24.11 (declaring that applications for

individual wireless sites “are not required and will not be accepted” in conjunction

with geographic area licenses); 1986 Order ¶12 (recognizing the role of local, state,

regional, or local land use authorities).

3 The Order distinguishes between geographic area licenses, which grant

licensees blanket authority to transmit on specific frequencies in a given geographic

area, and site-by-site licenses, which grant licensees authority to transmit on specific

frequencies at specific sites. See Order ¶36 [JA-817-18]. Small wireless facilities

subject to the site-by-site licensing regime must continue to comply with

environmental and historic preservation review. Id. References to “spectrum

licenses” and the FCC’s “spectrum licensing authority” herein thus relate only to

geographic area licenses.


30

Courts have repeatedly rejected claims that this kind of peripheral federal

involvement can transform the project into an “undertaking” or a “major federal

action.” See, e.g., Lee, 877 F.2d at 1058 (construction of D.C. correctional facility

not an “undertaking” where project not subject to federal control or approval);

Sugarloaf, 959 F.2d at 513-15 (certification of incinerator too “ministerial” to be an

“undertaking”); Norton, 240 F.3d at 1263 (acquisition of land not a “major federal

action” where agency exercised “no discretion” over project); Am. Airlines, Inc. v.

Dept. of Transp., 202 F.3d 788, 803-04 (5th Cir. 2000) (decision allowing increased

flights not a “major federal action” because agency lacked “significant discretion”);

Ringsred, 828 F.2d at 1308. Absent substantial federal involvement in all aspects of

a project, agency action is merely “marginal” and does not trigger review. Sierra

Club v. Penfold, 857 F.2d 1307, 1314 (9th Cir. 1988); see also Bus. & Residents All.

of East Harlem v. Jackson, 430 F.3d 584, 592 (2d Cir. 2005) (a federal agency must

have power to “approve or otherwise control” a project for it to fall within NHPA’s

scope).

The FCC likewise has never viewed geographic area spectrum licensing as

providing the federal nexus required to convert the deployment of facilities into

“undertakings” and “major federal actions.” Order ¶84 [JA-839]. Similar

technologies, like signal boosters, also operate on FCC licensed spectrum but have

never been subject to NEPA or NHPA. Deployed in homes and businesses across


31

the country, signal boosters use antenna technology to amplify cell signals between

mobile devices and wireless networks. Like small cells, they operate pursuant to

geographic area spectrum licenses. See Amendment of Parts 1, 2, 22, 24, 27, 90 and

95 of the Commission's Rules to Improve Wireless Coverage Through the Use of

Signal Boosters, Report and Order, 28 FCC Rcd. 1663 (2013). Yet the FCC has

never considered the authorized use of signal boosters pursuant to a spectrum license

as sufficient to transform the deployment of those facilities into “undertakings” or

“major federal actions.” Order ¶84, n.170 [JA-839]. Nor could it; as here, the FCC’s

tangential involvement in authorizing spectrum use is not enough to federalize the

deployment of signal boosters.4 By contrast, the FCC has historically treated its site-

specific licensing decisions as sufficient to trigger NEPA and NHPA. See Order

¶36 [JA-817-18].

Geographic area spectrum licenses are not, as Petitioners suggest, a legal

prerequisite to deploying wireless infrastructure. See Keetoowah Br. at 24-30.

Instead, geographic area spectrum licenses are only necessary to provide wireless

service using specified frequencies. Order ¶85 [JA-839-41]. But while a spectrum

license may be required to operate a small wireless facility, neither a geographic

4 The same is true of microwave news gathering trucks, with masts up to around

50 feet tall, and certain licensed satellite dishes. These facilities would not be

deployed but for FCC authorizations permitting operations on licensed spectrum, yet

their implementation has never been subject to NEPA or NHPA.


32

area spectrum license nor any other form of FCC approval is required to build a

particular small wireless site. See id.; see also 47 C.F.R. § 24.11.

It is well established that “where federal approvals are not legal predicates to

private actions,” the approvals are neither “major federal actions” nor

“undertakings.” State of N.J., Dept. of Envtl. Prot. & Energy v. Long Island Power

Auth., 30 F.3d 403, 417 (3d Cir. 1994); see also Sugarloaf, 959 F.2d at 512-13.

Private projects, like small wireless facility deployments, are federalized for review

purposes only if the project “cannot begin or continue without prior approval by a

federal agency and the agency possesses authority to exercise discretion over the

outcome.” Sugarloaf, 959 F.2d at 512 (internal quotations and citations omitted).

Sugarloaf thus held that FERC’s certification of an incinerator as a small power

facility did not amount to a “major federal action” because the facility legally could

have been built without the agency’s certification. Id. at 513-14.

So too here. Wireless service providers or infrastructure owners are not

legally required to obtain a geographic area spectrum license—or any other form of

FCC approval—before constructing small wireless facilities. See Order ¶86 [JA-

841-42]. The issuance of geographic service licenses is typically “remote in both

time and regulatory reach” from the deployment of small wireless facilities. Id. ¶88

[JA-842-43]. In fact, many small wireless facilities are deployed by private entities

that do not hold FCC spectrum licenses at all. See Crown Castle Comments at 3


33

[JA-274]. Private actors make marketplace decisions about deployment plans in light

of applicable state and local zoning requirements. Id. FCC action is not a “legal

requirement” for these deployments, and the agency retains no “discretion” over

them. Long Island Power Auth., 30 F.3d at 417.

Nor could the agency “take environmental [or historical] considerations into

account before acting” to issue spectrum licenses. Id. The physical deployment of

particular infrastructure occurs in a manner and at locations that the Commission

cannot foresee, let alone direct, at the time of spectrum licensing. Order ¶85 [JA-

839-41]. While it is safe to assume that some wireless facilities will be built

following spectrum licensing, the Commission cannot know when, where, or what

kind of facilities will be deployed. There is thus “no plausible way” for the FCC to

meaningfully assess the environmental and historic effects of particular small cell

deployments. Order ¶89 [JA-843]; see Sierra Club v. FERC, 827 F.3d 36, 46-47

(D.C. Cir. 2016) (agency need only assess effects that are “sufficiently likely to

occur that a person of ordinary prudence would take it into account”).

That principle is amply demonstrated by the development of technology that

has led to the need for small cell deployment. When geographic wireless licenses

were first issued, technology at that time required construction of macro sites. To

meet growing demand, providers now need to deploy more wireless facilities, but

evolving technology allows these deployments to utilize smaller equipment. These


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facilities are still being deployed under the aegis of the carrier’s existing FCC

geographic area license, without the need to return to the agency for modification or

revision of that license. For example, Sprint’s recent small cell deployments utilize

its existing 2.5 GHz licenses. See Sprint Reaches Nationwide LTE Advanced

Milestone, https://newsroom.sprint.com/quarterly-network-update.htm; see also

AT&T Comments at 5-6 (6/15/17) [JA-260-61] (noting plans to install small cells

around the country); What is Small Cell Technology,

https://www.verizon.com/about/our-company/5g/what-small-cell-technology

(documenting Verizon’s countless recent small cell deployments). The fact that the

Commission has no control over whether and how carriers roll out these new

technologies under their existing licenses underscores that geographic spectrum

licenses do not provide the level of federal authority necessary to constitute a federal

undertaking or major federal action. See State of S.D. v. Andrus, 614 F.2d 1190,

1194 (8th Cir. 1980) (issuing a mineral patent is not a “major federal action” under

NEPA because it is “not a precondition which enables a party to begin mining

operations”).

Nor do the performance and construction requirements associated with

spectrum licenses provide control over small wireless facility deployment. See

Keetoowah Br. at 26-27. The FCC’s construction requirements ensure that licensed

spectrum is put to beneficial use by imposing coverage benchmarks upon licensees,


https://newsroom.sprint.com/quarterly-network-update.htmhttps://www.verizon.com/about/our-company/5g/what-small-cell-technology

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but they do not require the construction of particular facilities in any specific place.

For example, Upper 700 MHz C Block licensees must provide coverage to at least

75 percent of the population in its licensed geographic area by the end of its license

term. See 47 C.F.R. § 27.14(h). But the FCC’s rules say nothing about how or where

the licensee may choose to deploy wireless infrastructure.5 As far as the FCC is

concerned, licensees are free to deploy any mix of communications infrastructure

they like so long as the minimum construction and coverage requirements are met.

Licensees can satisfy construction obligations without deploying any small wireless

facilities, as they have done for over 20 years. Indeed, licensees could theoretically

meet those obligations without deploying any permanent physical facilities.6 The

mere fact that the FCC requires licensees to operate on their licensed spectrum does

not reflect any federal control—or even involvement—in wireless siting decisions,

particularly as they relate to small cells.

NRDC cites New York v. Nuclear Regulation Comm’n, 681 F.3d 471 (D.C.

Cir. 2012), to support its claim that the Order “unlawfully separat[es] the wireless

services provided by a facility from the facility necessary to provide these services.”

5 The FCC has no way to know how many small wireless facilities a licensee

has deployed, let alone where they are located, making NEPA and NHPA review

implausible.

6 A carrier could, for example, use mobile cells on wheels to provide service

throughout their licensed area, or in the future could use aerial platforms to provide

wireless service in rural areas.


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NRDC Br. at 12. NRDC misses the point. New York held that a Waste Confidence

Decision (“WCD”) that would be used by the NRC as “a predicate to every decision

to license or relicense a nuclear power plant” constituted a major federal action. New

York, 681 F.3d at 476 (emphasis added). This Court reasoned that the WCD was

inextricably intertwined with the NRC’s nuclear power plant licensing authority and

thus qualified as a major federal action. See id. But the FCC’s geographic area

licenses authorize carriers to use spectrum only and exert no licensing authority over

small wireless facility deployments. The analogous circumstance would be if the

NRC licensed entities on a state- or region-wide basis and then exercised no control

over where, when, or how many nuclear facilities those entities went on to build—

clearly a very different regulatory regime than this Court considered in New York.

Thus, NRDC’s “asserted linkage” between small cell deployments and spectrum

licensing is far “too attenuated” to provide the requisite level of federal involvement

for an “undertaking” or a “major federal action.” Sierra Club, 827 F.3d at 47

(requiring a “reasonably close causal relationship” akin to “proximate cause”

between federal action and its effects).

Moreover, NRDC’s argument adds nothing to Petitioners’ claim that the FCC

unreasonably determined that small cell siting does not raise significant

environmental concerns. In New York, it was undisputed that nuclear reactor siting

is a major federal action raising environmental concerns, and this Court concluded


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that the prior WCD was a predicate to those decisions. 681 F.3d at 476. But here,

where the FCC reasonably concluded that small cell siting does not raise significant

environmental issues, there is no reason why NEPA should be triggered by a prior

geographic licensing decision. See supra, Section I.A.

NRDC mischaracterizes the FCC’s actions here as unlawful “splintering

tactics,” NRDC Br. at 12. It is true that agencies cannot evade NEPA and NHPA by

artificially dividing a major federal action into “smaller, less significant actions.”

Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 298 (D.C. Cir. 1987). But “[t]he

rule against segmentation . . . is not required to be applied in every situation.” Id.

Where, as here, Petitioners can identify no “overarching federal project,” and federal

permission is required only for the “discrete” and tangential ability to utilize

spectrum, segmentation claims are misplaced. Standing Rock Sioux Tribe v. U.S.

Army Corps of Eng’rs, 301 F.Supp.3d 50, 70 (D.D.C. 2018); see also Sierra Club v.

U.S. Army Corps of Eng’rs, 990 F.Supp.2d 9, 37 (D.D.C. 2013) (noting “general

reluctance to conclude that federal action with respect to a small portion of a

pipeline” is sufficient to “federalize the entire project”). Applied as NRDC suggests,

the anti-segmentation rule would expand NEPA and NHPA beyond recognition and

federalize the entire wireless network ecosystem. Under this expansive view, the

construction of carrier stores would arguably require NEPA and NHPA review: But

for the FCC’s spectrum licenses authorizing a carrier to provide wireless service, the


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stores would not be built. Although neither courts nor the FCC have ever understood

the construction of carrier retail stores to be “undertakings” or a “major federal

actions,” the “but for” test urged by Petitioners here could well lead to this absurd

result. See Big Bend, 896 F.3d at 423-25 (rejecting a “but for” approach that would

“improperly” extend NEPA’s reach).

II. THE FCC WAS NOT REQUIRED TO CONDUCT ANY NEPA REVIEW BEFORE ISSUING THE ORDER.

NRDC raises additional claims that are incorrect and not properly before this

Court. NRDC asserts that the Order itself is a “major federal action significantly

affecting the quality of the human environment” and contends that the FCC failed to

prepare an EIS as required by NEPA. See NRDC Br. at 10-11. Because this

argument was not raised below, it is outside the scope of this appeal. See 47 U.S.C.

§ 405(a) (“The filing of a petition for reconsideration shall not be a condition

precedent to judicial review . . . except where the party seeking such review . . . relies

on questions of fact or law upon which the Commission… has been afforded no

opportunity to pass”); Free Access & Broad. Telemedia, LLC v. FCC, 865 F.3d 615,

619 (D.C. Cir. 2017) (no jurisdiction to review agency analysis if not raised in

petition for reconsideration); FiberTower Spectrum Holdings, LLC v. FCC, 782 F.3d

692, 696 (D.C. Cir. 2015) (same); Environmentel, LLC v. FCC, 661 F.3d 80, 83

(D.C. Cir. 2011).


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In any event, NRDC is mistaken. The FCC’s issuance of the Order itself is

not a “major federal action,” nor will it �

ORAL ARGUMENT NOT SCHEDULED No. 18-1129 ......ORAL ARGUMENT NOT SCHEDULED No. 18-1129 (consolidated...

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